# Is burning a cross free speech? **URL:** \ **Category:** Great Debates\ **Created:** [December 11, 2002, 2:53am UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923 "2002-12-11T02:53:50Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 12, 2002, 3:11pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/61 "2002-12-12T15:11:50Z")
> [@](#): > > \*Originally posted by MC Master of Cermonies \* > \*\*American free speech is only more protected in THEORY (so if your looking for some direct legal comparision, that is not what I am saying), you just have to look at the McCarthy witch hunts and the persecution of communists, the recent patriot act and the arrests it has brought and a many other instances to see that in practice constitutionally protected rights is in no way a better way to protect free speech than the older European non-constitutional systems. \*\* Are you asserting that Europe did not have anti-Communist and collaborationist witch-hunts after WWII? Are you claiming that anyone has been arrested pursuant to the Patriot Act because of their speech? Odd. Sua ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 12, 2002, 3:15pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/62 "2002-12-12T15:15:24Z")
God, Clarence Thomas is such a raving hypocrite. I hope the other Justices aren’t swayed by him, but I have fears. Sua ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [December 12, 2002, 3:54pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/63 "2002-12-12T15:54:13Z")
**Sua** , do you see a bright line between symbolic communication explicitly communicating a threat (and thereby not protected by the first amendment), and symbolic communication that doesn’t explicitly communicate a threat (and thereby protected)? I’m having trouble coming up with such a test. I’m assuming the test would need to put, on one side, a Nazi flag (protected speech) and, on the other side, a photograph of your next door neighbor Photoshopped to look like he’s been riddled with bullets, slipped under your neighbor’s door. Ideally, the test would make it clear on which side of the line these two burning crosses fall. Daniel ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 12, 2002, 4:10pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/64 "2002-12-12T16:10:59Z")
**Daniel,** you’ve hit it in a nutshell - the bright line is personalization. “The Jews should be driven out of their homes” is protected speech. “David Strauss, you Jew, I’m going to drive you out of your home,” is not protected speech. So, in this case, the cross burnt on private property is protected speech, while the cross (attempted to be) burnt on the property of the victim is not protected speech. Sua ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [December 12, 2002, 4:16pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/65 "2002-12-12T16:16:24Z")
> [@](#): > > \*Originally posted by SuaSponte \* > \*\ ***Daniel,** you’ve hit it in a nutshell - the bright line is personalization. \*\* Huh. So I can sing songs about how much I love a good lynching, and how I sure would love to find someone to lynch – and I can sing these songs to my black neighbor, and as long as I don’t say I’m going to lynch him, my speech is protected? Even if it is protected, I’d think a burning cross in my front yard is sufficiently personalized to constitute a threat. A burning cross on private property as part of a rally is probably not a threat – but if somebody leaves the rally, finds a black man, and drags him to his death, at the very least the rally holder is likely to be found partly liable in civil court for the death, wouldn’t you think? Daniel ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [December 12, 2002, 4:17pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/66 "2002-12-12T16:17:42Z")
> [@](#): > > \*Originally posted by SuaSponte \* > \*\*\*\*The cross (attempted to be) burnt on the property of the victim is not protected speech. > \*\* Oops – I see you agree with me on this distinction. I need to read more carefully. Daniel ---
**Author:** ![MC\_Master\_of\_Ceremonies](https://avatars.discourse-cdn.com/v4/letter/m/bb73d2/32.png) [@MC\_Master\_of\_Ceremonies](https://boards.straightdope.com/u/MC_Master_of_Ceremonies)\ **Post date:** [December 12, 2002, 5:00pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/67 "2002-12-12T17:00:23Z")
> [@](#): > > \*Originally posted by SuaSponte \* > \*\*Are you asserting that Europe did not have anti-Communist and collaborationist witch-hunts after WWII? > > Are you claiming that anyone has been arrested pursuant to the Patriot Act because of their speech? > > Odd. > > Sua \*\* No, but nothing like what went on in the US From what I hear, yes. I’m sorry, but it is laughable to say that the US has had better potected free speech over the past 50 years than northern Europe, it just ain’t true. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 12, 2002, 5:16pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/68 "2002-12-12T17:16:53Z")
**MC,** once again, you are confusing anecdotes and your opinion with evidence. You say nothing went on in Europe that compared with McCarthyism. It is your assertion, and you must support it. Go find numbers and facts. Find out how many people in the U.S. went to jail due to McCarthyism and other violations of free speech rights over the past 50 years. Compare those numbers (per capita, of course) to the numbers in Europe over the past 50 years. Hell, son, you are going to lose this argument at day 1, because Europe, dontcha know, includes Greece and Spain. 😃 Present facts, not your opinions, and if you are right I’ll share the chuckles with you. Sua ---
**Author:** ![king\_of\_spain](https://avatars.discourse-cdn.com/v4/letter/k/7cd45c/32.png) [@king\_of\_spain](https://boards.straightdope.com/u/king_of_spain)\ **Post date:** [December 12, 2002, 5:33pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/69 "2002-12-12T17:33:09Z")
> [@](#): > > \*Originally posted by SuaSponte \* > \*\ ***Daniel,** you’ve hit it in a nutshell - the bright line is personalization. > > “The Jews should be driven out of their homes” is protected speech. > > “David Strauss, you Jew, I’m going to drive you out of your home,” is not protected speech. > > So, in this case, the cross burnt on private property is protected speech, while the cross (attempted to be) burnt on the property of the victim is not protected speech. > \*\* So say I own a whole lot of land around my house - several square miles, let’s say. In one particular place, my land borders property belonging to a black family. Now say I go to the edge of my land in that spot and burn a cross right there, so that the black family can see it from their window. Is that protected speech? It’s on my property, but I’m pretty clearly going out of my way to direct it at particular persons. ---
**Author:** ![Joe\_Cool](https://avatars.discourse-cdn.com/v4/letter/j/ecb155/32.png) [@Joe\_Cool](https://boards.straightdope.com/u/Joe_Cool)\ **Post date:** [December 12, 2002, 5:40pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/70 "2002-12-12T17:40:37Z")
As a counter-example, are you saying that _just because your property borders with that owned by a black family_, that you should not be allowed to use that portion of your property as you see fit? Doesn’t that strip you of your rights pursuant to property ownership without good reason? And Sua, I agree. I worry that the other justices might get dragged into his lunacy. ---
**Author:** ![Zoff](https://avatars.discourse-cdn.com/v4/letter/z/6de8d8/32.png) [@Zoff](https://boards.straightdope.com/u/Zoff)\ **Post date:** [December 12, 2002, 5:40pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/71 "2002-12-12T17:40:52Z")
> [@](#): > > _Originally posted by DanielWithrow_ > Even if it is protected, I’d think a burning cross in my front yard is sufficiently personalized to constitute a threat. I think this is one area where the Virginia statute is flawed. It assumes that the intent is to intimidate by the mere burning of the cross. Why is burning a cross in your front yard personalized? What if you live in an all-white neighborhood with little likelihood of a black person seeing the cross? “I hate black people” is not the same as “I’m going to kill you, John.” ---
**Author:** ![MC\_Master\_of\_Ceremonies](https://avatars.discourse-cdn.com/v4/letter/m/bb73d2/32.png) [@MC\_Master\_of\_Ceremonies](https://boards.straightdope.com/u/MC_Master_of_Ceremonies)\ **Post date:** [December 12, 2002, 5:47pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/72 "2002-12-12T17:47:09Z")
> [@](#): > > \*Originally posted by SuaSponte \* > \*\ ***MC,** once again, you are confusing anecdotes and your opinion with evidence. You say nothing went on in Europe that compared with McCarthyism. It is your assertion, and you must support it. > > Go find numbers and facts. Find out how many people in the U.S. went to jail due to McCarthyism and other violations of free speech rights over the past 50 years. Compare those numbers (per capita, of course) to the numbers in Europe over the past 50 years. Hell, son, you are going to lose this argument at day 1, because Europe, dontcha know, includes Greece and Spain. 😃 > > Present facts, not your opinions, and if you are right I’ll share the chuckles with you. > > Sua \*\* Ok, If you actually look through back to my original posts, I am not referring to Greece or Spain as I am talking about Northern European Democracies :rolleyes; . The countries I mentioned were UK, Germany(though of course I shouldn’t really include them because of E. Germany), the Benelux countries and Scandanavia. I’m sorry but it is well-known that the US is not exactly free compared to these countries, just compare Amnesty Internationals reports on human rights abuses within these countries. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 12, 2002, 6:18pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/73 "2002-12-12T18:18:24Z")
> [@](#): > > \*Originally posted by MC Master of Cermonies \* > I’m sorry but it is well-known that the US is not exactly free compared to these countries, just compare Amnesty Internationals reports on human rights abuses within these countries. Here we go. See, this is evidence. Kindly provide a link to the Amnnesty International reports. Remember, on these boards the person asserting the position bears the burden of proof. I note, however, that you have attempted to change the terms of debate in your latest post. You now speak of ‘human rights;’ we were talking about freedom of expression. So the Amnesty International reports should be the ones that address freedom of expression. Sua ---
**Author:** ![king\_of\_spain](https://avatars.discourse-cdn.com/v4/letter/k/7cd45c/32.png) [@king\_of\_spain](https://boards.straightdope.com/u/king_of_spain)\ **Post date:** [December 12, 2002, 6:20pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/74 "2002-12-12T18:20:11Z")
> [@](#): > > \*Originally posted by Joe\_Cool \* > \*\*As a counter-example, are you saying that _just because your property borders with that owned by a black family_, that you should not be allowed to use that portion of your property as you see fit? Doesn’t that strip you of your rights pursuant to property ownership without good reason? > \*\* Most posters in this thread seem to agree that you have a right to do what you want with your own speech _up to the point where it becomes a threat directed at a specific person or persons._ Is it any different to say you have a right to do what you want with your own property up to the point where it becomes a threat directed at specific persons? (I don’t have a firm position on this, BTW, I just think it’s an interesting question to play with.) ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 12, 2002, 6:29pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/75 "2002-12-12T18:29:03Z")
> [@](#): > > \*Originally posted by DesertGeezer \* > SCOTUS has already made it clear that this Amendment doesn’t mean unlimited speech. Slander is a crime, Point of order. People _always_ consider slander a limitation on free speech, and they are wrong. Slander is not a crime. The criminalization of libel and slander disappeared hundreds of years ago in U.S. law. Slander gives rise to a civil cause of action, brought by the individual slandered, against the slanderer. If found liable, the slanderer must pay for the economic consequences of his/her speech. Which is the case with any speech. One may legally burn the flag, and one’s employer may legally fire one’s ass for doing so. > [@](#): > > shouting “fire!” in a theater is a crime, another misnomer. **Falsely** shouting “fire” with intent to cause a riot is a crime, so it is the same limitation as the incitement to riot one. Sua ---
**Author:** ![photopat](https://avatars.discourse-cdn.com/v4/letter/p/e95f7d/32.png) [@photopat](https://boards.straightdope.com/u/photopat)\ **Post date:** [December 12, 2002, 6:30pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/76 "2002-12-12T18:30:04Z")
> [@](#): > > \*Originally posted by MC Master of Cermonies \* > \*\*I’m sorry but it is well-known that the US is not exactly free compared to these countries, just compare Amnesty Internationals reports on human rights abuses within these countries. \*\* That may be the case, but you still aren’t citing any actual statistics. Saying “it’s well known” is still opinion. Getting back to the basic question, I believe in a very broad interpretation of Free Speech, including the freedom to express opinions or beliefs that are repugnant to the majority of people. That being said, there certainly are areas where speech is not protected. It seems everybody agrees that burning a cross on somebody else’s private property, without permission, is not protected. The main disagreement here seems to be whether or not it should be protected **at all**. I would have to say yes. Now, considering the idea of a Klansman burning a cross on his own property, how does it compare to other activities that a person might engage in on private property, such as walking around one’s yard nude, or having sex in the yard? Those activities would be offensive to some of the neighbors, and might be intended to prod some neighbor in particular, and I suspect that they would result in arrest. Personally, I’d rather see people having sex in the yard than see a cross burn. Obviously burning a cross is intended to send a message, while nudity may not be, so they’re very different in that regard. Still, they can both be a means of personal expression, and on _private_ property, shouldn’t they both be permitted? ---
**Author:** ![MC\_Master\_of\_Ceremonies](https://avatars.discourse-cdn.com/v4/letter/m/bb73d2/32.png) [@MC\_Master\_of\_Ceremonies](https://boards.straightdope.com/u/MC_Master_of_Ceremonies)\ **Post date:** [December 12, 2002, 6:38pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/77 "2002-12-12T18:38:38Z")
Human rights cover freedom of speech, and it is fallicous to argue the burden of proof is on the arguer. I have already cited McCarthyism but you have not shown that anything nearing that level of supression has gone on in European countries. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [December 12, 2002, 6:45pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/78 "2002-12-12T18:45:42Z")
> [@](#): > > \*Originally posted by Zoff \* > \*\*I think this is one area where the Virginia statute is flawed. It assumes that the intent is to intimidate by the mere burning of the cross. Why is burning a cross in your front yard personalized? What if you live in an all-white neighborhood with little likelihood of a black person seeing the cross? > > “I hate black people” is not the same as “I’m going to kill you, John.” \*\* My original quote – “Even if it is protected, I’d think a burning cross in my front yard is sufficiently personalized to constitute a threat” – was very poorly worded. Lemme try again: Even if your burning a cross on your private property is protected, I’d think your burning a cross in my front yard is sufficiently personalized to constitute a threat from you to me. Better? Sorry for the ambiguous phrasing. Daniel ---
**Author:** ![Scott\_Dickerson](https://avatars.discourse-cdn.com/v4/letter/s/f04885/32.png) [@Scott\_Dickerson](https://boards.straightdope.com/u/Scott_Dickerson)\ **Post date:** [December 12, 2002, 6:52pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/79 "2002-12-12T18:52:50Z")
Here is what the statute in question actually says. “It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony. Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.” 1. The mere fact that we use the Net and patronize the SDMB probably means that we-all tend toward a free speech, free expression of ideas point of view. 2. But most of us (I don’t say ALL, please note) are probably familiar with environments in which ideas are vigorously debated, without having serious concern that such disagreements will lead to violence. Many people, having learned from history, cannot afford to be quite so sanguine about the prospect. To such persons it may well appear that they are being asked to risk laying down their lives–or the lives of their families–in the cause of a Constitutional abstraction. Considering matters in that way splashes a bit of cold water on the fervor of the most ardent Bill of Rights absolutists. 3. There are going to be compromises in this area whether or not we think there ought to be. The relevant question is, What kind, and to what degree? 4. IMHO, the government should not quash expression absent a finding that the particular INCIDENT of expression was more oppressive of the “total package of rights” of the onlooker/recipient, than quashing it would be with respect to the expressor. Yep, I’m a “balancer.” (Guess what: everyone is.) 5. Yet if I were a member of the Supes, I would strike down this law. Why? Because (a) it specifies one particular symbol out of many possibilities; and (b) the final clause (“prima facie evidence of intent”) which makes no sense to me. 6. Regarding (a) above, this law seems to go too far in “taking sides.” Burning a cross is so threatening that it constitutes a near-assault–but not burning a star of David? an Islamic symbol? Mightn’t an active and vocal veteran conclude, reasonably, that burning the American flag in sight of his/her house constituted a threat of imminent violence? Mightn’t burning of the gay-rights “rainbow flag” suggest to some of us the possibility of an attack a la Matthew Shepherd? I’m not so naive as to not know the connection of the burning cross with violence and intimidation. But surely the key is something like “given the totality of the situation, would a reasonable person feel intimidated”–not “what is the shape of the object”. Note that “reasonable person” formulations are often used in law; for example, in self-defense cases. 1. As to (b), if “intent” matters at all, then one must be able to defend one’s actions by persuading the judge or jury that the actual intent was innocent. For example, I can imagine someone protesting the policies of the Catholic Church by burning a cross (on their own private property, but incidentally in view of some practicing Catholics). A trial might show that there was no general anti-Catholic animus involved, only the desire to express in dramatic form disagreement with, say, the Church’s handling of the child-molestation issue. “Prima facie intent” seems to rule out inquiry into this aspect. 2. There is no “right not to be offended.” But neither is organized society incapable of protecting its members from the aggressions of others. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [December 12, 2002, 6:55pm UTC](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923/80 "2002-12-12T18:55:48Z")
Are there previously defined ways that a person can establish what his intent “really” was when he used a symbol to communicate? What I am thinking of is if I burned a cross on my front lawn and got arrested. (Assume that I didn’t violate any fire codes.) My next door neighbor is black, and he and his family just moved in. When I go to trial, I say, “I was communicating, thru my burning cross, that I believe that blacks in general are inferior and we were better off when they were all slaves - _but I don’t support violence against any specific black_.” Would the burden of proof be on the state to disprove that, by citing instances that I acted violently against blacks or something? I ask because I can’t see any way that the state would be prevented from arresting flag burners, on the grounds that they were advocating the violent overthrow of the US government, and that protests that they really only opposed this or that policy of the government could be dismissed out of hand. Regards, Shodan [Previous page](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923.md?page=3) [Next page](https://boards.straightdope.com/t/is-burning-a-cross-free-speech/141923.md?page=5)